COAL REFUSE DISPOSAL CONTROL ACT
Act of Sep. 24, 1968, P.L. 1040, No. 318
AN ACT
Cl. 52
Providing for the protection of the safety, health and welfare
of the people, property and public roads and highways of the
Commonwealth from conditions on coal refuse disposal areas,
or parts thereof, which fail to comply with the established
rules, regulations or quality standards adopted to avoid air
or water pollution or to protect water supplies, and from
the danger of slipping, sliding or burning of coal refuse
disposal areas, or parts thereof, sometimes caused by the
storage of coal refuse; prescribing for and regulating the
operation of coal refuse disposal areas, and parts thereof;
prescribing the powers of the Department of Environmental
Resources with respect thereto; providing for the power to
enjoin the operation of coal refuse disposal areas, or parts
thereof, which contain certain conditions; providing for
civil and criminal penalties; authorizing the acquisition
by condemnation of certain land areas in certain cases;
establishing a permit system, authorizing the adoption of
rules and regulations, establishing minimum standards ;
requiring bonds and for the maintenance of primary
jurisdiction over surface coal mining in Pennsylvania;
providing incentives for coal refuse disposal activities on
previously affected areas; and providing for coal refuse
disposal research. (Title amended Dec. 7, 1994, P.L.808,
No.114)
TABLE OF CONTENTS
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1. Findings and Declaration of Policy.
2. Short Title.
3. Definitions.
3.1. Powers and Duties of the Department.
3.2. Powers and Duties of the Environmental Quality
Board.
3.3. Powers and Duties of the Environmental Hearing
Board.
4. Permits.
4.1. Site Selection.
5. Applications.
6. Bonding.
6.1. Designating Areas Unstable for Coal Refuse
Disposal.
6.2. Coal Refuse Disposal Activities on Previously
Affected Areas.
6.3. Experimental Practices.
6.4. Coal Bed Methane Review Board.
6.5. Procedures.
7. Unlawful Conduct.
8. Cessation Orders.
9. Enforcement Orders.
10. Injunctive Relief; Remedies not Exclusive.
11. Civil Penalties.
12. Penalties.
13. Citizens' Suits.
14. Coal Refuse Disposal Control Fund.
15. Savings Clause.
15.1. Suspension of Implementation of Certain
Provisions.
16. Severability.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Findings and Declaration of Policy.--It is hereby
determined by the General Assembly of Pennsylvania and declared
as a matter of legislative finding that:
(1) The accumulation and storage of coal refuse material
can cause a condition which fails to comply with the established
rules, regulations or quality standards adopted to avoid air
or water pollution and can create a danger to persons, property
or public roads or highways, either by reason of shifting or
sliding, or by exposing persons walking onto the refuse to the
danger of being burned. In order to minimize the exposure to
these conditions and dangers, it is better to have a few large
coal refuse disposal sites as opposed to numerous small coal
refuse disposal sites.
(2) No coal refuse disposal area, or part thereof, should
be operated in such manner as to cause a condition which fails
to comply with the established rules, regulations or quality
standards adopted to avoid air or water pollution or to cause
a danger to persons, property or public roads or highways, and
such condition and danger must be prevented and eliminated by
the control and regulation of coal refuse disposal so as to
effectuate the policy declared in this section.
(3) The mining of coal is and has been an important and
necessary industry, which has provided and will continue to
provide for the effective use and development of a valuable
natural resource underlying a large part of the Commonwealth
of Pennsylvania.
(4) Research and development of methods for reuse,
backstowing in underground mines, disposal in inactive surface
mines, and surface disposal of coal refuse is essential to
continue to develop the technology necessary to assure adequate
environmental protection and the utilization of active and
inactive surface and underground coal mines for coal refuse
disposal should be encouraged as an alternative to surface coal
refuse disposal because it may conserve the land resources and
it can improve the Commonwealth's air and water quality.
(5) Incentives are needed to encourage research and
development of technology to enhance environmental protection
in the disposal of coal refuse, to develop methods for reuse
or environmentally safe disposal of coal refuse and to encourage
disposal of coal refuse on areas previously affected by coal
mining activities where available and practicable.
(6) The Commonwealth has already secured approval of a
remining incentive program from the Office of Surface Mining
and the United States Environmental Protection Agency under the
Surface Mining Control and Reclamation Act of 1977 (Public Law
95-87, 30 U.S.C. § 1201 et seq.) and the Federal Water Pollution
Control Act (62 Stat. 1155, 33 U.S.C. § 1251 et seq.) for
surface coal mining activities, and the Commonwealth intends
to establish a similar program for coal refuse operations to
the extent authorized by Federal law.
(7) Section 301(p) of the Federal Water Pollution Control
Act authorizes the issuance of a modified permit under section
402 of the Federal Water Pollution Control Act for coal remining
operations.
(8) The reuse of areas that have been affected by past coal
mining activities and remain unreclaimed should be encouraged
for future coal refuse disposal to minimize impact on unaffected
areas.
(9) It is important to protect aquatic and terrestrial
wildlife and their habitats during site selection and operation
of coal refuse disposal areas.
(10) It is the purpose in part of this act to establish an
alternative procedure to court action for consideration and
resolution of objections to the location of certain coal bed
methane wells or roads associated with those wells to be
constructed on surface lands and to modify the procedure for
review of well permit applications to the extent necessary to
allow for the procedure for alternative dispute resolution.
((10) added Feb. 1, 2010, P.L.126, No.4)
The General Assembly of Pennsylvania therefore declares it
to be the policy of the Commonwealth of Pennsylvania that the
prevention and elimination of certain conditions resulting from
the operation of coal refuse disposal areas is directly related
to the safety, health and welfare of the people of the
Commonwealth, making it necessary to control and regulate coal
refuse disposal and to encourage the siting of coal refuse
disposal operations on land previously disturbed by mining
activities or coal refuse disposal operations.
(1 amended Dec. 7, 1994, P.L.808, No.114)
Section 2. Short Title.--This act shall be known and may
be cited as the "Coal Refuse Disposal Control Act."
Section 3. Definitions.--The following words and terms shall
have the following meanings unless the context clearly indicates
otherwise:
(1) "Abatement plan" shall mean, for the purposes of section
6.2 of this act, any individual technique or combination of
techniques, the implementation of which will result in reduction
of the baseline pollution load. ((1) added Dec. 7, 1994,
P.L.808, No.114)
(1.1) "Actual improvement" shall mean, for the purposes of
section 6.2 of this act, the reduction of the baseline pollution
load resulting from the implementation of the approved abatement
plan except that any reduction of the baseline pollution load
achieved by water treatment may not be considered as actual
improvement: Provided, however, That treatment approved by the
department of the coal refuse before, during or after placement
in the coal refuse disposal area shall not be considered to be
water treatment. ((1.1) added Dec. 7, 1994, P.L.808, No.114)
(1.2) "Air pollution" and "water pollution" shall,
respectively, have the definitions ascribed to them under
applicable laws, as amended, from time to time. ((1.2) added
Dec. 7, 1994, P.L.808, No.114
(1.3) "Alternative dispute resolution" shall mean the
procedure for dispute resolution provided in section 6.5. ((1.3)
amended Feb. 1, 2010, P.L.126, No.4)
(1.4) "Baseline pollution load" shall mean, for the purposes
of section 6.2 of this act, the characterization of the
pollutional material being discharged from or on the pollution
abatement area, described in terms of mass discharge for each
parameter deemed relevant by the department, including seasonal
variations and variations in response to precipitation events.
((1.4) amended Feb. 1, 2010, P.L.126, No.4)
(1.5) "Best technology" means, for the purposes of section
6.2 of this act, measures and practices which will abate or
ameliorate, to the maximum extent possible, discharges from or
on the pollution abatement area. ((1.5) added Feb. 1, 2010,
P.L.126, No.4)
(1.6) " Board " shall mean the Coal Bed Methane Review Board
established in section 6.4 of this act. ((1.6) added Feb. 1,
2010, P.L.126, No.4)
(1.7) " Coal bed methane " shall mean gas which can be
produced from a coal seam, a mined-out area or a gob well.
((1.7) added Feb. 1, 2010, P.L.126, No.4)
(1.8) " Coal bed methane well " shall mean a hole or well
which is sunk, drilled, bored or dug into the earth for the
production of coal bed methane from a coal seam, a mined-out
area or a gob well for consumption or sale. The term includes
a horizontal borehole. The term does not include any of the
following:
(i) A shaft, hole or well which is sunk, drilled, bored or
dug into the earth for core drilling or production of coal or
water.
(ii) A borehole drilled or being drilled for the purpose
of or to be used for degasifying coal seams if a condition in
one of the following subclauses is met:
(A) The borehole is:
(I) Used to vent methane to the outside atmosphere from an
operating coal mine.
(II) Regulated as part of the mining permit under the act
of June 22, 1937 (P.L.1987, No.394) , known as "The Clean
Streams Law," and the act of May 31, 1945 (P.L.1198, No.418)
, known as the "Surface Mining Conservation and Reclamation
Act."
(III) Drilled by the operator of the operating coal mine
for the purpose of increased safety.
(B) The borehole is used to vent methane to the outside
atmosphere under a federally funded or Commonwealth-funded
abandoned mine reclamation project.
(iii) A well or borehole drilled in a coal seam from within
an underground coal mine for the production of coal bed methane.
This clause includes a well or borehole connected to a well or
borehole which is sunk, drilled or dug from the surface.
((1.8) added Feb. 1, 2010, P.L.126, No.4)
(2) "Coal refuse" means any waste coal, rock, shale, slurry,
culm, gob, boney, slate, clay and related materials, associated
with or near a coal seam, which are either brought above ground
or otherwise removed from a coal mine in the process of mining
coal or which are separated from coal during the cleaning or
preparation operations. Coal refuse shall not mean overburden
from surface mining operations.
(2.1) "Coal refuse disposal activities" shall mean, for the
purposes of section 6.2 of this act, the storage, dumping or
disposal of any waste coal, rock, shale, slurry, culm, gob,
boney, slate, clay, underground development wastes, coal
processing wastes, excess soil and related materials, associated
with or near a coal seam, which are either brought above ground
or otherwise removed from a coal mine in the process of mining
coal or which are separated from coal during the cleaning or
preparation operations. The term shall not include the removal
or storage of overburden from surface mining activities. ((2.1)
added Dec. 7, 1994, P.L.808, No.114)
(3) "Coal refuse disposal area" means any general area or
plot of land used as a place for disposing, dumping or storage
of coal refuse and all land thereby affected, including but not
limited to any deposit of coal refuse on or buried in the earth
and intended as permanent disposal of or long-term storage of
such material, but not including coal refuse deposited within
an active mine itself or coal refuse never removed from a mine,
and all other land area in which the natural land surface has
been disturbed as a result of or incidental to the coal refuse
disposal activities of the operator, including but not limited
to, private ways and roads appurtenant to any such area, land
excavations, workings, tailings, repair areas, storage areas,
processing areas, shipping areas, and areas in which structures,
facilities, equipment, machines, tools or other materials or
property which result from, or are used in, coal refuse disposal
operations are situated.
(4) "Department" means the Department of Environmental
Resources.
(5) "Maintain" means the maintenance of the site for as
long as necessary after completion of the operation to prevent
health, safety or pollution hazards or nuisances from occurring.
Maintenance shall include but not be limited to repair of cracks
or fissures, repair of areas where settling occurs, repair of
erosion areas, treatment of acid drainage or runoff,
extinguishment of fires or hot spots, reseeding and soil
treatment until adequate vegetative cover is established.
(6) "Municipality" shall be construed to include any county,
city, borough, town, township, school district, institution,
or any authority created by any one or more of the foregoing.
(7) "Operate" means to enter upon a coal refuse disposal
area for the purpose of disposing, storage or dumping coal
refuse except for the purpose of reclaiming or removing coal
refuse, ashes, or red dog or other material from a coal refuse
disposal area pursuant to the requirements of the act of May
31, 1945 (P.L.1198, No.418), known as the "Surface Mining
Conservation and Reclamation Act."
(8) "Operator" means any person operating any coal refuse
disposal area, or part thereof.
(9) "Person" shall be construed to include any natural
person, partnership, association or corporation or any agency,
instrumentality or entity of Federal or State Government.
Whenever used in any section or clause prescribing and imposing
a penalty, or imposing a fine or imprisonment, or both, the
term "person" shall not exclude the members of an association
and the directors, officers or agents of a corporation.
(9.1) "Pollution abatement area" shall mean, for the
purposes of section 6.2 of this act, that part of the permit
area which is causing or contributing to the baseline pollution
load, which shall include adjacent and nearby areas that must
be affected to bring about significant improvement of the
baseline pollution load and which may include the immediate
location of the discharges. ((9.1) added Dec. 7, 1994, P.L.808,
No.114)
(10) "Property" means real or personal property.
(10.1) "Public recreational impoundment" means a closed
basin, naturally formed or artificially built, which is dammed
or excavated for the retention of water and which is owned,
rented or leased by the Federal Government, the Commonwealth
or a political subdivision of the Commonwealth and which is
used for swimming, boating, water skiing, hunting, fishing,
skating or other similar activities. ((10.1) added Dec. 7, 1994,
P.L.808, No.114)
(11) "Secretary" means the head of the Department of
Environmental Resources.
(12) "Stability" means the maintenance of a condition which
prevents danger to the safety, health or welfare of persons,
property or public roads or highways because of slipping,
shifting or sliding of coal refuse deposited on coal refuse
disposal areas.
(13) " Surface owner " shall mean a person who owns any of
the following interests in the surface upon which a coal bed
methane well or associated access road may be constructed:
(i) A fee interest.
(ii) An interest for life.
(iii) A remainder interest.
The term does not include:
(i) The Federal or State Government or any agency or
political subdivision thereof.
(ii) A person who is entitled to royalties for removal or
recovery of coal bed methane.
(iii) A person who owns a lease, easement, right-of-way,
license, privilege or other similar interest in the surface.
((13) added Feb. 1, 2010, P.L.126, No.4)
(14) " Well operator " shall mean a person who has filed
or who is required to file for a well permit under the act of
December 19, 1984 (P.L.1140, No.223) , known as the "Oil and
Gas Act." ((14) added Feb. 1, 2010, P.L.126, No.4)
(15) "Well p ermit " shall mean a well permit issued
pursuant to the act of December 19, 1984 (P.L.1140, No.223) ,
known as the "Oil and Gas Act." ((15) added Feb. 1, 2010,
P.L.126, No.4)
(3 amended Oct. 10, 1980, P.L.807, No.154)
Compiler's Note: The Department of Environmental Resources,
referred to in this section, was abolished by Act 18 of
1995. Its functions were transferred to the Department
of Conservation and Natural Resources and the Department
of Environmental Protection.
Compiler's Note: The Secretary of Environmental Resources,
referred to in this section, was abolished by Act 18 of
1995. The functions of the secretary were transferred
to the Secretary of Conservation and Natural Resources
and the Secretary of Environmental Protection.
Section 3.1. Powers and Duties of the Department.--The
department shall have the power and its duty shall be to:
(a) Administer the coal refuse disposal control program
pursuant to the provisions of this act.
(b) Cooperate with appropriate Federal, State, interstate
and local units of government and with appropriate private
organizations in carrying out its duties under this act.
(c) Adopt such policies, standards and procedures,
consistent with the rules and regulations of the Environmental
Quality Board, as shall be necessary for effective coal refuse
disposal, to conserve the air, water and land resources of the
Commonwealth, protect the public health and safety, prevent and
eliminate public nuisances, and enable it to carry out the
purposes and provisions of this act.
(d) Report to the Legislature from time to time on further
assistance that may be needed to administer this act.
(e) Initiate, conduct and support research, demonstration
projects, and investigations and coordinate all State agency
research programs pertaining to coal refuse disposal systems.
(f) Issue such permits and orders and conduct such
inspections as may be necessary to implement the provisions of
this act and the policies, rules and regulations, and standards
adopted pursuant to the act.
(g) Review all Commonwealth research programs pertaining
to coal refuse disposal, including but not limited to water
quality and air pollution control: Provided, however, That this
section shall not be construed to limit the authority of each
department to conduct research programs and operations as
authorized by law.
(h) Review and take appropriate action on all permit
applications submitted pursuant to the provisions of this act
and to issue orders to cease operations, to issue, modify,
suspend or revoke permits pursuant to this act and to the rules
and regulations adopted hereto.
(i) Enter upon, examine and inspect each and every coal
refuse disposal area in the Commonwealth, as often as necessary,
to determine whether coal refuse disposal areas are being
operated in accordance with the provisions of this act.
(j) Establish limitations on the duration of permits in
accord with rules and regulations and establish conditions for
permit issuance and renewals.
(3.1 added Oct. 10, 1980, P.L.807, No.154)
Compiler's Note: Section 502(c) of Act 18 of 1995, which
created the Department of Conservation and Natural
Resources and renamed the Department of Environmental
Resources as the Department of Environmental Protection,
provided that the Environmental Quality Board shall have
the powers and duties currently vested in it, except as
vested in the Department of Conservation and Natural
Resources by Act 18 of 1995, which powers and duties
include those set forth in section 3.1.
Section 3.2. Powers and Duties of the Environmental Quality
Board.--(a) The Environmental Quality Board shall have the
power and its duties shall be to adopt rules and regulations
to accomplish the purposes of this act, including but not
limited to the protection of the safety, health, welfare, and
property of the public, and the air and waters of the
Commonwealth. Such rules and regulations shall be adopted
pursuant to the provisions of the act of July 31, 1968 (P.L.769,
No.240), referred to as the Commonwealth Documents Law, upon
such notice and after such public hearings as the Environmental
Quality Board deems appropriate.
(b) To implement section 6.2 of this act, the Environmental
Quality Board shall adopt regulations that are consistent with
the requirements of section 301(p) of the Federal Water
Pollution Control Act (62 Stat. 1155, 33 U.S.C. § 1311(p)) and
the State remining regulations for surface coal mining
activities.
(3.2 amended Dec. 7, 1994, P.L.808, No.114)
Compiler's Note: Section 502(c) of Act 18 of 1995, which
created the Department of Conservation and Natural
Resources and renamed the Department of Environmental
Resources as the Department of Environmental Protection,
provided that the Environmental Quality Board shall have
the powers and duties currently vested in it, except as
vested in the Department of Conservation and Natural
Resources by Act 18 of 1995, which powers and duties
include those set forth in section 3.2.
Section 3.3. Powers and Duties of the Environmental Hearing
Board.--The Environmental Hearing Board shall have the power
and its duties shall be to hear and determine all appeals from
actions of the department taken in accordance with the
provisions of this act. Any and all actions taken by the
Environmental Hearing Board with reference to any such appeal
shall be in the form of an adjudication, and all such actions
shall be subject to the provisions of Title 2 of the
Pennsylvania Consolidated Statutes (relating to administrative
law and procedure).
(3.3 added Oct. 10, 1980, P.L.807, No.154)
Section 4. Permits.--(a) No person shall establish or
operate a coal refuse disposal area or enter upon an inactive
coal refuse disposal area or reactivate an inactive operation
for the purposes of coal refuse disposal without first having
obtained a permit from the department.
(b) The department shall not issue any coal refuse disposal
permit or renew or amend any permit if it finds, after
investigation and an opportunity for informal hearing, that:
(1) the applicant has failed and continues to fail to comply
with any of the provisions of this act or of any of the acts
repealed or amended hereby; or
(2) the applicant has shown a lack of ability or intention
to comply with such laws as indicated by past or continuing
violations. Any person, partnership, association or corporation
which has engaged in unlawful conduct as defined in section 7
of this act or which has a partner, associate, officer, parent
corporation, subsidiary corporation, contractor or subcontractor
which has engaged in such unlawful conduct shall be denied any
permit required by this act unless the permit application
demonstrates that the unlawful conduct is being corrected to
the satisfaction of the department. Persons other than the
applicant, including independent subcontractors, who are
proposed to operate under the permit shall be listed in the
application and those persons shall be subject to approval by
the department prior to their engaging in coal refuse disposal
operations, and such persons shall be jointly and severally
liable with the permittee for violations of this act with which
the permittee is charged and in which such persons participate.
(4 amended Oct. 10, 1980, P.L.807, No.154)
Section 4.1. Site Selection.--(a) Preferred sites shall
be used for coal refuse disposal unless the applicant
demonstrates to the department another site is more suitable
based upon engineering, geology, economics, transportation
systems and social factors and is not adverse to the public
interest. A preferred site is one of the following:
(1) A watershed polluted by acid mine drainage.
(2) A watershed containing an unreclaimed surface mine but
which has no mining discharge.
(3) A watershed containing an unreclaimed surface mine with
discharges that could be improved by the proposed coal refuse
disposal operation.
(4) Unreclaimed coal refuse disposal piles that could be
improved by the proposed coal refuse disposal operation.
(5) Other unreclaimed areas previously affected by mining
activities.
(6) An area adjacent to or an expansion of an existing coal
refuse disposal site.
Where, however, the adverse environmental impacts of the
preferred site clearly outweigh the public benefits, the site
shall not be considered a preferred site.
((a) amended Feb. 1, 2010, P.L.126, No.4)
(b) Except if it is a preferred site, coal refuse disposal
shall not occur on prime farm lands, in sites known to contain
Federal threatened or endangered plants or animals or State
threatened or endangered animals, in watersheds designated as
exceptional value under 25 Pa. Code Ch. 93 (relating to water
quality standards), in areas hydrologically connected to and
which contribute at least five per cent of the drainage to
wetlands designated as exceptional value under 25 Pa. Code Ch.
105 (relating to dam safety and waterway management) unless a
larger percentage is approved by the department in consultation
with the Pennsylvania Fish and Boat Commission and in watersheds
less than four square miles in area upstream of the intake of
public water supplies or the upstream limit of public
recreational impoundments.
(c) For new refuse disposal areas to support an existing
coal mining activity, the applicant shall identify the
alternative sites considered within a one mile radius and the
basis for their consideration. Where there are no preferred
sites within a one mile radius or where the applicant, under
subsection (a), demonstrates that a nonpreferred site is more
suitable, the applicant shall demonstrate the basis for the
exclusion of other sites and shall, based on reasonably
available data, demonstrate to the department that the proposed
site is the most suitable on the basis of environmental,
economic, technical, transportation and social factors and that
the proposed site meets the requirements of subsection (b).
However, where the adverse environmental impacts of the proposed
site clearly outweigh the public benefits, the department shall
not approve the site.
(d) For other new coal refuse disposal activities, the
applicant shall identify the alternative sites considered within
a twenty-five square mile area and the basis for their
consideration. Where there are no preferred sites in an area
of twenty-five square miles or where the applicant, under
subsection (a), demonstrates that a nonpreferred site is more
suitable, the applicant shall demonstrate the basis for the
exclusion of other sites and shall, based on reasonably
available data, demonstrate to the department that the proposed
site is the most suitable on the basis of environmental,
economic, technical, transportation and social factors and that
the proposed site meets the requirements of subsection (b).
However, where the adverse environmental impacts of the proposed
site clearly outweigh the public benefits, the department shall
not approve the site.
(e) The alternatives analysis required by this section
satisfies the requirement for an alternatives analysis under
the act of November 26, 1978 (P.L.1375, No.325), known as the
"Dam Safety and Encroachments Act," and regulations promulgated
under the act.
(4.1 added Dec. 7, 1994, P.L.808, No.114)
Section 5. Applications.--(a) Applications for permits
shall be in writing and shall be made on a form prescribed,
prepared and furnished by the department and shall set forth
such information and be accompanied by such data as the
department may require including but not limited to maps,
geological reports, soil reports, design and operational plans,
and shall be prepared by or under the supervision of and bear
the seal and signature of a registered professional engineer
or professional geologist, with assistance from experts in
related fields.
(b) The department is authorized to charge and collect from
persons and municipalities in accordance with rules and
regulations reasonable fees for applications filed and for
permits issued.
(c) The application shall specify the manner in which
topsoil and subsoil will be conserved and restored.
(d) The application shall include a statement specifying
whether or not disposal of coal refuse in deep mines and
inactive, abandoned or unreclaimed surface mines is proposed
for the operation, and if not, detailing the reasons why
underground disposal was not proposed. Subject to the provisions
of subsection (g) of this section, unless the applicant
demonstrates to the satisfaction of the department that such
disposal will be economically or technically infeasible, the
operator shall maximize disposal of coal refuse by underground
disposal.
(e) The application shall also set forth the manner in which
the operation will establish on the areas proposed to be
affected a diverse, effective, and permanent vegetative cover
of the same seasonal variety native to the area of land to be
affected and capable of self-regeneration and plant succession
at least equal in extent of cover to the natural vegetation of
the area: Provided, however, That introduced species may be
used in the vegetation process where desirable and necessary
to achieve the approved postmining land use plan. The
application shall in addition set forth the manner in which the
operation will achieve a final contour of the coal refuse
disposal area which will be compatible with natural
surroundings.
(f) The application shall include a statement of the uses
and productivity of the land proposed to be affected, and a
statement of the land use proposed for the affected area after
reclamation is completed. No post-operational land use or uses
shall be approved unless the application demonstrates that the
use or uses are likely to be achieved, are proposed in the
operator's permit application as the post-operational land use
for the affected area, do not present any actual or potential
threat to public health or safety, or any actual or potential
threat of water contamination, diminution, interruption or
pollution, are consistent with applicable land use policies and
plans and involve no unreasonable delay in implementation.
(g) The application shall also set forth the manner in which
the operator plans to comply with the requirements of the act
of January 8, 1960 (1959 P.L.2119, No.787), known as the "Air
Pollution Control Act," the act of June 22, 1937 (P.L.1987,
No.394), known as "The Clean Streams Law," the act of November
26, 1978 (P.L.1375, No.325), known as the "Dam Safety and
Encroachments Act," the act of May 31, 1945 (P.L.1198, No.418),
known as the "Surface Mining Conservation and Reclamation Act,"
and where applicable the act of July 31, 1968 (P.L.788, No.241),
known as the "Pennsylvania Solid Waste Management Act" or the
act of July 7, 1980 (No.97), known as the "Solid Waste
Management Act." No approval shall be granted unless the plan
provides for compliance with the statutes hereinabove
enumerated, and failure to comply with the statutes hereinabove
enumerated during mining or thereafter shall render the operator
liable to the sanctions and penalties provided in this act for
violations of this act and to the sanctions and penalties
provided in the statutes hereinabove enumerated for violations
of such statutes. Such failure to comply shall be cause for
revocation of any approval or permit issued by the department
to the operator: Provided, however, That a violation of the
statutes hereinabove enumerated shall not be deemed a violation
of this act unless this statute's provisions are violated but
shall only be cause for revocation of the operator's permit.
Nothing in this subsection, however, shall be construed to limit
the department's authority to regulate activities in a
coordinated manner. Compliance with the provisions of this
subsection and with the provisions of this act and the
provisions of the statutes hereinabove enumerated shall not
relieve the operator of the responsibility for complying with
the provisions of all other applicable statutes, including but
not limited to the act of July 17, 1961 (P.L.659, No.339), known
as the "Pennsylvania Bituminous Coal Mine Act," the act of
November 10, 1965 (P.L.721, No.346), known as the "Pennsylvania
Anthracite Coal Mine Act," and the act of July 9, 1976 (P.L.931,
No.178), entitled "An act providing for emergency medical
personnel; employment of emergency medical personnel and
emergency communications in coal mines."
(h) For those lands in the permit application which a
reconnaissance inspection suggests may be prime farmlands, a
soil survey shall be made or obtained by the permit applicant
according to standards established by the United States
Secretary of Agriculture in order to confirm the exact location
of any such farmlands. The department shall grant a permit to
affect prime farmland only after consultation with the United
States Department of Agriculture and only if the Department of
Environmental Resources finds in writing that the operator has
the technological capability to restore such affected area,
within a reasonable time, to equivalent or higher levels of
yield as nonaffected prime farmland in the surrounding area
under equivalent levels of management and can meet such soil
reconstruction standards as the department may by rule and
regulation prescribe.
(i) Public notice of every application for a permit or bond
release under this act shall be given by notice published in a
newspaper of general circulation, published in the locality
where the permit is applied for, once a week for four
consecutive weeks. The department shall prescribe such
requirements regarding public notice and public hearings on
permit applications and bond releases as it deems appropriate.
For the purpose of these public hearings, the department shall
have the authority and is hereby empowered to administer oaths,
subpoena witnesses or written or printed materials, compel the
attendance of witnesses, or production of witnesses, or
production of materials, and take evidence including but not
limited to inspections of the land proposed to be affected and
other operations carried on by the applicant in the general
vicinity. Each applicant for a permit under this act shall file
a copy of his application for public inspection with the
recorder of deeds at the courthouse of the county or an
appropriate public office approved by the department where the
coal refuse disposal is proposed to occur. Should any person
having an interest which is or may be adversely affected by any
action of the department under this subsection, or by the
failure of the department to act upon an application for a
permit, he may proceed to lodge an appeal with the Environmental
Hearing Board in the manner provided by law, and from the
adjudication of said board he may further appeal as provided
by Title 2 of the Pennsylvania Consolidated Statutes (relating
to administrative law and procedure). The Environmental Hearing
Board, upon the request of any party, may in its discretion
order the payment of costs and attorney's fees it determines
to have been reasonably incurred by such party in proceedings
pursuant to this section.
(j) Permit applications shall specify how the coal refuse
disposal area will be maintained.
(k) Permits shall specify how the operation shall provide
for stability within the meaning of this act.
(l) All papers, records, and documents of the department,
and applications for permits pending before the department,
shall be public records open to inspection during business
hours: Provided, however, That information which pertains only
to the analysis of the chemical and physical properties of the
coal (excepting information regarding such mineral or elemental
content which is potentially toxic in the environment) shall
be kept confidential and not made a matter of public record.
(m) The application for a permit shall include, upon a form
prepared and furnished by the department, the written consent
of the landowner to entry upon any land to be affected by the
operation of the operator, by the Commonwealth and by any of
its authorized agents prior to the initiation of coal refuse
disposal operations, during coal refuse disposal operations,
and for a period of five years after the operation is completed
or abandoned for the purpose of reclamation, planting and
inspection or for the construction of any such pollution
abatement facilities as may be deemed necessary by the
department for the prevention of pollution from coal refuse.
Such forms shall be deemed to be recordable documents, and prior
to the initiation of coal refuse disposal operations under the
permit, such forms shall be recorded at the office of the
recorder of deeds in the county or counties in which the area
to be affected under the permit is situate.
(n) Permit applications shall contain such other information
as the department may require.
(5 amended Oct. 10, 1980, P.L.807, No.154)
Compiler's Note: The Department of Environmental Resources,
referred to in subsec. (h), was abolished by Act 18 of
1995. Its functions were transferred to the Department
of Conservation and Natural Resources and the Department
of Environmental Protection.
Section 6. Bonding.--(a) Prior to commencing coal refuse
disposal operations, the operator shall file with the department
a bond for the land to be affected by the coal refuse disposal
area on a form to be prescribed and furnished by the department,
payable to the Commonwealth and conditioned that the operator
shall faithfully perform all of the requirements of this act,
the act of May 31, 1945 (P.L.1198, No.418), known as the
"Surface Mining Conservation and Reclamation Act," the act of
June 22, 1937 (P.L.1987, No.394), known as "The Clean Streams
Law," the act of January 8, 1960 (1959 P.L.2119, No.787), known
as the "Air Pollution Control Act," the act of November 26,
1978 (P.L.1375, No.325), known as the "Dam Safety and
Encroachments Act," and where applicable, the act of July 31,
1968 (P.L.788, No.241), known as the "Pennsylvania Solid Waste
Management Act" or the act of July 7, 1980 (No.97), known as
the "Solid Waste Management Act": Provided, however, That an
operator posting a bond sufficient to comply with this section
of the act shall not be required to post a separate bond for
the permitted area under each of the acts hereinabove
enumerated. The foregoing proviso shall not, however, prohibit
the department from requiring additional bond amounts for the
permitted area should such an increase be determined by the
department to be necessary to meet the requirements of this
act. The amount of the bond required shall be in an amount
determined by the secretary based upon the total estimated cost
to the Commonwealth of completing the approved reclamation plan,
or in such other amount and form as may be established by the
department pursuant to regulations for an alternate coal bonding
program which shall achieve the objectives and purposes of the
bonding program. Said estimate shall be based upon the
operator's statement of his estimated cost of fulfilling the
plan during the course of his operation, inspection of the
application and other documents submitted, inspection of the
land area, and such other criteria as may be relevant, including
but not limited to the probable difficulty of reclamation giving
consideration to such factors as topography, geology of the
site, hydrology, and vegetation potential, the proposed land
use and the additional cost to the Commonwealth which may be
entailed by being required to bring personnel and equipment to
the site after abandonment by the operator, in excess of the
cost to the operator of performing the necessary work during
the course of his surface mining operations. When the plan
involves reconstruction or relocation of any public road or
highway, the amount of the bond shall include an amount
sufficient to fully build or restore the road or highway to a
condition approved by the Department of Transportation. No bond
shall be filed for less than ten thousand dollars ($10,000).
Liability under such bond shall be for the duration of the
operation, and for a period of five full years after the last
year of augmented seeding and fertilizing and any other work
to complete reclamation to meet the requirements of law and
protect the environment unless released in part prior thereto
as hereinafter provided. Such bond shall be executed by the
operator and a surety licensed to do business in the
Commonwealth and approved by the secretary: And, provided
further, That the operator may elect to deposit cash,
automatically renewable irrevocable bank letters of credit which
may be terminated by the bank at the end of a term only upon
the bank giving ninety days prior written notice to the
permittee and the department, or negotiable bonds of the United
States Government or the Commonwealth of Pennsylvania, the
Pennsylvania Turnpike Commission, The General State Authority,
the State Public School Building Authority, or any municipality
within the Commonwealth, with the department in lieu of a
corporate surety. The cash deposit, amount of letter of credit,
or market value of such negotiable bonds shall be equal at least
to the sum of the bond. The secretary shall, upon receipt of
any such deposit of cash, letter of credit or negotiable
securities, immediately place the same with the State Treasurer,
whose duty it shall be to receive and hold the same in the name
of the Commonwealth, in trust, for the purposes for which such
deposit is made. The State Treasurer shall at all times be
responsible for the custody and safekeeping of such deposits.
The operator making the deposit shall be entitled from time to
time to demand and receive from the State Treasurer, on the
written order of the secretary, the whole or any portion of any
collateral so deposited, upon depositing with him, in lieu
thereof, other collateral of the classes specified having a
market value at least equal to the sum of the bond, and also
to demand, receive and recover the interest and income from
said negotiable bonds as the same becomes due and payable: And,
provided further, That where negotiable bonds as the same
becomes due and mature or are called, the State Treasurer, at
the request of the permittee, shall convert such negotiable
bonds into such other negotiable bonds of the classes herein
specified as may be designated by the permittee: And provided
further, That where notice of intent to terminate a letter of
credit is given, the department shall give the permittee thirty
days written notice to replace the letter of credit with other
acceptable bond guarantees as provided herein, and if the
permittee fails to replace the letter of credit within the
thirty-day notification period, the department shall draw upon
and convert such letter of credit into cash and hold it as a
collateral bond guarantee; or the department, in its discretion,
may accept a self-bond from the permittee, without separate
surety, if the permittee demonstrates to the satisfaction of
the department a history of financial solvency, continuous
business operation and continuous efforts to achieve compliance
with all United States of America and Pennsylvania environmental
laws, and, meets all of the following requirements:
(1) The permittee shall be incorporated or authorized to
do business in Pennsylvania and shall designate an agent in
Pennsylvania to receive service of suits, claims, demands or
other legal process.
(2) The permittee or if the permittee does not issue
separate audited financial statements, its parent, shall provide
audited financial statements for at least its most recent three
fiscal years prepared by a certified public accountant in
accordance with generally accepted accounting principles. Upon
request of the permittee, the department shall maintain the
confidentiality of such financial statements if the same are
not otherwise disclosed to other government agencies or the
public.
(3) During the last thirty-six calendar months, the
applicant has not defaulted in the payment of any dividend or
sinking fund installment or preferred stock or installment on
any indebtedness for borrowed money or payment of rentals under
long-term leases or any reclamation fee payment currently due
under the Federal Surface Mining Control and Reclamation Act
of 1977, 30 U.S.C. § 1232, for each ton of coal produced in the
Commonwealth of Pennsylvania.
(4) The permittee shall have been in business and operating
no less than ten years prior to filing of application unless
the permittee's existence results from a reorganization,
consolidation or merger involving a company with such longevity.
However, the permittee shall be deemed to have met this
requirement if it is a majority-owned subsidiary of a
corporation which has such a ten-year business history.
(5) The permittee shall have a net worth of at least six
times the aggregate amount of all bonds applied for by the
operator under this section.
(6) The permittee shall give immediate notice to the
department of any significant change in managing control of the
company.
(7) A corporate officer of the permittee shall certify to
the department that forfeiture of the aggregate amounts of
self-bonds furnished for all operations hereunder would not
materially affect the permittee's ability to remain in business
or endanger its cash flow to the extent it could not meet its
current obligations.
(8) The permittee may be required by the department to
pledge real and personal property to guarantee the permittee's
self-bond. The department is authorized to acquire and dispose
of such property in the event of a default to the bond
obligation and may use the moneys in the Coal Refuse Disposal
Control Fund to administer this provision.
(9) The permittee may be required to provide third party
guarantees or indemnifications of its self-bond obligations.
(10) The permittee shall provide such other information
regarding its financial solvency, continuous business operation
and compliance with environmental laws as the department shall
require.
(11) An applicant shall certify to the department its
present intention to maintain its present corporate status for
a period in excess of five years.
(12) A permittee shall annually update the certifications
required hereunder and provide audited financial statements for
each fiscal year during which it furnishes self-bonds.
(13) The permittee shall pay an annual fee in the amount
determined by the department of the cost to review and verify
the permittee's application for self-bonding and annual
submissions thereafter. Where the coal refuse disposal operation
is reasonably anticipated to continue for a period of at least
ten years from the date of application, the permittee may elect
to deposit collateral and file a collateral bond as provided
in the following phased deposit schedule. The permittee shall,
prior to commencing coal refuse disposal operations, deposit
ten thousand dollars ($10,000) or twenty-five per cent of the
amount determined under this subsection, whichever is greater.
The operator shall, thereafter, annually deposit ten per cent
of the remaining bond amount for a period of ten years. Interest
accumulated by such collateral shall become a part of the bond.
The department may require additional bonding at any time to
meet the intent of this section. The collateral shall be
deposited, in trust, with the State Treasurer as provided in
this subsection, or with a bank, selected by the department,
which shall act as trustee for the benefit of the Commonwealth,
according to rules and regulations promulgated hereunder, to
guarantee the operator's compliance with this act and the
statutes hereinabove enumerated. The operator shall be required
to pay all costs of the trust. The collateral deposit, or part
thereof, shall be released of liability and returned to the
operator, together with a proportional share of accumulated
interest, upon the conditions of and pursuant to the schedule
and criteria for release provided in subsection (c) of this
section.
(b) If the operator abandons the operation or fails or
refuses to comply with the requirements of the act in any
respect for which liability has been charged on the bond, the
secretary shall declare the bond forfeited, and shall certify
the same to the Department of Justice, which shall proceed to
enforce and collect the amount of liability forfeited thereon,
and where the operator has deposited cash or securities as
collateral in lieu of a corporate surety, the secretary shall
declare said collateral forfeited, and shall direct the State
Treasurer to pay said funds into the Coal Refuse Disposal
Control Fund, or to proceed to sell said securities to the
extent forfeited and pay the proceeds thereon into the Coal
Refuse Disposal Control Fund. Should any corporate surety fail
to promptly pay, in full, a forfeited bond, it shall be
disqualified from writing any further surety bonds under this
act. Any operator aggrieved by reason of forfeiting the bond
or converting collateral, as herein provided, may appeal to the
Environmental Hearing Board in the manner provided by law, and
from the adjudication of said board he may further appeal as
provided by Title 2 of the Pennsylvania Consolidated Statutes
(relating to administrative law and procedure). For the purposes
of this subsection the standards for determining whether a coal
refuse disposal operation has been abandoned shall be as
prescribed by rules and regulations promulgated hereunder.
(c) Subject to the public notice requirements of section
5(i) of this act, if the department is satisfied that the
reclamation covered by the bond or portion thereof has been
accomplished as required by this act, the department may release
in whole or in part the bond or deposit according to the
following schedule:
(1) when the operator has completed the grading, planting
and drainage control of a bonded area in accordance with his
approved reclamation plan, the release of sixty per cent of the
bond for the applicable permit area;
(2) when the vegetation has been established on the affected
area in accordance with the approved reclamation plan, the
department shall retain the amount of bond for the vegetated
area which would be sufficient for the cost to the Commonwealth
of reestablishing vegetation. Such retention of bond shall be
for the duration of liability under the bond as prescribed in
subsection (a) of this section. No part of the bond shall be
released under this subsection so long as the lands to which
the release would be applicable are contributing suspended
solids to streamflow or runoff outside the permit area in excess
of the requirement of law. Where a permanent impoundment is to
be retained, the portion of bond may be released under this
paragraph so long as provisions for sound future maintenance
by the operator or the landowner have been made with the
department; and
(3) when the operator has completed successfully all coal
refuse disposal and reclamation activities, the release of the
remaining portion of the bond, but not before the expiration
of the period specified for operator responsibility in
subsection (a) of this section: Provided, however, That bond
shall not be fully released until all requirements of the act
are met. Upon release of all or part of the bond and collateral
as herein provided, the State Treasurer shall immediately return
to the operator the amount of cash or securities specified
therein.
(6 amended Oct. 10, 1980, P.L.807, No.154)
Section 6.1. Designating Areas Unsuitable for Coal Refuse
Disposal.--(a) Pursuant to the procedures set forth in
subsection (f) of this section, the department shall designate
an area as unsuitable for all or certain types of coal refuse
disposal if the department determines that reclamation pursuant
to the requirements of this act is not technologically and
economically feasible.
(b) Upon petition pursuant to subsection (f) of this
section, a surface area may be designated unsuitable for all
or certain types of coal refuse disposal operations if such
operations will:
(1) be incompatible with existing State or local land use
plans or programs;
(2) affect fragile or historic lands in which such
operations could result in significant damage to important
historic, cultural, scientific, and esthetic values and natural
systems;
(3) affect renewable resource lands in which such operations
could result in a substantial loss or reduction of long-range
productivity of water supply or of food or fiber products, and
such lands to include aquifers and aquifer recharge areas; or
(4) affect natural hazard lands in which such operations
could substantially endanger life and property, such lands to
include areas subject to frequent flooding and areas of unstable
geology.
(c) The department shall forthwith develop a process to
meet the requirements of this act. The process shall include:
(1) review by the department of surface coal refuse disposal
lands;
(2) a data base and an inventory system which will permit
proper evaluation of the capacity of different land areas of
the State to support and permit reclamation of coal refuse
disposal operations;
(3) a method or methods for implementing land use planning
decisions concerning coal refuse disposal operations; and
(4) proper notice, opportunities for public participation,
including a public hearing prior to making any designation or
redesignation, pursuant to this section.
(d) Determinations of the unsuitability of land for coal
refuse disposal as provided for in this section, shall be
integrated as closely as possible with present and future land
use planning and regulation processes at the Federal, State and
local levels.
(e) The requirements of this section shall not apply to
lands on which coal refuse disposal operations are being
conducted on the date of enactment of this act or under a permit
issued pursuant to this act, or where substantial legal and
financial commitments as they are defined under § 522 of the
Surface Mining Control and Reclamation Act of 1977, 30 U.S.C.
§ 1201 et seq. in such operation were in existence prior to
January 4, 1977.
(f) Any person having an interest which is or may be
adversely affected shall have the right to petition the
department to have an area designated as unsuitable for coal
refuse disposal operations, or to have such a designation
terminated. Pursuant to the procedure set forth in this
subsection, the department may initiate proceedings seeking to
have an area designated as unsuitable for coal refuse disposal
operations, or to have such a designation terminated. Such a
petition shall contain allegations of facts with supporting
evidence which would tend to establish the allegations. Within
ten months after receipt of the petition the department shall
hold a public hearing in the locality of the affected area,
after appropriate notice and publication of the date, time and
location of such hearing. After a person having an interest
which is or may be adversely affected has filed a petition and
before the hearing, as required by this subsection, any person
may intervene by filing allegations of facts with supporting
evidence which would tend to establish the allegations. Within
sixty days after such hearing, the department shall issue and
furnish to the petitioner and any other party to the hearing,
a written decision regarding the petition, and the reasons
therefore. In the event that all the petitioners stipulate
agreement prior to the requested hearing and withdraw their
request, such hearing need not be held.
(g) Prior to designating any land areas as unsuitable for
coal refuse disposal operations, the department shall prepare
a detailed statement on (i) the potential coal resources of the
area, (ii) the demand for coal resources, and (iii) the impact
of such designation on the environment, the economy, and the
supply of coal.
(h) Subject to valid existing rights as they are defined
under § 522 of the Surface Mining Control and Reclamation Act
of 1977, 30 U.S.C. § 1201 et seq., no coal refuse disposal
operations except those which exist on August 3, 1977, shall
be permitted:
(1) on any lands within the boundaries of units of the
National Park System, the National Wildlife Refuge Systems, the
National System of Trails, the National Wilderness Preservation
System, the Wild and Scenic Rivers System, including study
rivers designated under section 5(a) of the Wild and Scenic
Rivers Act 16 U.S.C. § 1274 et seq. and National Recreation
Areas designated by act of Congress;
(2) on any Federal lands within the boundaries of any
National forest: Provided, however, That coal refuse disposal
operations may be permitted on such lands if the Department of
the Interior and the department find that there are no
significant recreational, timber, economic, or other values
which may be incompatible with such coal refuse disposal
operations;
(3) which will adversely affect any publicly owned park or
places included in the National Register of Historic Sites
unless approved jointly by the department and the Federal, State
or local agency with jurisdiction over the park or the historic
site;
(4) within one hundred feet of the outside right-of-way
line of any public road, except where mine access roads or
haulage roads join such right-of-way line and except that the
regulatory authority may permit such roads to be relocated or
the area affected to lie within one hundred feet of such road,
if after public notice and opportunity for public hearing in
the locality a written finding is made that the interests of
the public and the landowners affected thereby will be
protected; or
(5) within three hundred feet of any occupied dwelling,
unless waived by the owner thereof, nor within three hundred
feet of any public park, public building, school, church,
community or institutional building, nor within one hundred
feet of a cemetery, nor within one hundred feet of the bank of
any stream. Notwithstanding this one hundred foot stream buffer
zone, if consistent with section 4.1 of this act, the department
may grant a variance to dispose of coal refuse and to relocate
or divert streams in the stream buffer zone if the operator
demonstrates to the satisfaction of the department that there
will be no significant adverse hydrologic or water quality
impacts as a result of the variance. The variance shall be
issued as a written order specifying the methods and techniques
that must be employed to prevent or mitigate adverse impacts.
Prior to granting any such variance, the operator shall be
required to give public notice of his application for the
variance in two newspapers of general circulation in the area
once a week for two successive weeks. Should any person file
any exception to the proposed variance within twenty days of
the last publication of the notice, the department shall conduct
a public hearing with respect to the application within thirty
days of receipt of the exception. The department shall also
consider any information or comments submitted by the
Pennsylvania Fish and Boat Commission prior to taking action
on any variance request. ((5) amended Dec. 7, 1994, P.L.808,
No.114)
(i) All new coal refuse disposal areas shall include a
system to prevent adverse impacts to surface and ground water
and to prevent precipitation from contacting the coal refuse.
The system for preventing precipitation from contacting the
coal refuse shall be installed, as phases of the coal refuse
disposal area reach capacity, as specified in the permit, when
the operator temporarily ceases operation of the coal refuse
disposal area for a period in excess of ninety days unless the
department, for reasons of a labor strike or business necessity,
approves a longer period that shall not exceed one year or when
the operator permanently ceases operation of the coal refuse
disposal area. The system shall allow for revegetation and the
prevention of erosion. ((i) added Dec. 7, 1994, P.L.808, No.114)
(6.1 added Oct. 10, 1980, P.L.807, No.154)
Section 6.2. Coal Refuse Disposal Activities on Previously
Affected Areas.--(a) Any operator who proposes to engage in
coal refuse disposal activities on an area on which there are
preexisting pollutional discharges resulting from previous
mining may request special authorization from the department
to proceed to conduct coal refuse disposal activities under
this section. Except as specifically modified by this section
and the rules and regulations adopted under this section, the
provisions of this act shall apply to special authorizations
to conduct coal refuse disposal activities on areas with
preexisting pollutional discharges.
(b) The department may grant special authorization under
this section if such special authorization is part of:
(1) a permit issued under section 4 of this act, except for
permit transfers after the effective date of this section, if
the request is made at the time of submittal of a permit
application or prior to a department decision to issue or deny
that permit; or
(2) a permit revision pursuant to department regulation,
but only if the operator affirmatively demonstrates to the
satisfaction of the department that:
(i) the operator has discovered pollutional discharges
within the permit area that came into existence after its permit
application was approved;
(ii) the operator has not caused or contributed to the
pollutional discharges;
(iii) the proposed pollution abatement area is not
hydrologically connected to any area where coal refuse disposal
activities have been conducted pursuant to the permit;
(iv) the operator has not affected the proposed pollution
abatement area by coal refuse disposal activities; and
(v) the department has not granted a bonding authorization
and coal refuse disposal approval for the area.
(c) The department shall not grant special authorization
under this section unless the operator making the request
affirmatively demonstrates all of the following:
(1) Neither the operator nor any officer, principal
shareholder, agent, partner, associate, parent corporation,
subsidiary or affiliate, sister corporation, contractor or
subcontractor or any related party:
(i) has any legal responsibility or liability as an operator
under section 315 of the act of June 22, 1937 (P.L.1987,
No.394), known as "The Clean Streams Law," for treating the
pollutional discharges from or on the proposed pollution
abatement area; or
(ii) has any statutory responsibility or liability for
reclaiming the proposed pollution abatement area.
(2) The proposed pollution abatement plan will result in a
significant reduction of the baseline pollution load and
represents best technology.
(3) The land within the proposed pollutional abatement area
can be reclaimed.
(4) The coal refuse disposal activities on the proposed
pollution abatement area will not cause any additional surface
water pollution or groundwater degradation.
(5) The coal refuse disposal activities on permitted areas
other than the proposed pollution abatement area will not cause
any surface water pollution or groundwater degradation.
(6) There are one or more preexisting pollutional discharges
from or on the pollution abatement area.
(7) All requirements of this act and the regulations
promulgated under this act that are not inconsistent with this
section have been met.
(d) An authorization may be denied under this section if
granting it will or is likely to affect any legal responsibility
or liability for abating the pollutional discharges from or
near the pollution abatement area.
(e) Except as specifically modified by this section, an
operator requesting special authorization under this section
shall comply with the permit application requirements of
sections 4 and 5 of this act and the regulations promulgated
under sections 4 and 5 of this act and shall also provide such
additional information as may be required by the department
relating to:
(1) a delineation of the proposed pollution abatement area,
including the location of the preexisting discharges;
(2) a description of the hydrologic balance for the proposed
pollution abatement area, including water quality and quantity
monitoring data; and
(3) a description of the abatement plan that represents the
best technology.
(f) An operator who is granted special authorization under
this section shall:
(1) implement the approved water quality and quantity
monitoring program for the pollution abatement area as required
by the department;
(2) implement the approved abatement plan;
(3) notify the department immediately prior to the
completion of each step of the abatement plan; and
(4) provide progress reports to the department within thirty
days after the completion of each step of the abatement program
in a manner prescribed by the department.
(g) (1) An operator granted special authorization under
this section shall be responsible for the treatment of
discharges in the following manner:
(i) Except for preexisting discharges which are not
encountered during coal refuse disposal activities or the
implementation of the abatement plan, the operator shall comply
with all applicable regulations of the department.
(ii) The operator shall treat preexisting discharges which
are not encountered during coal refuse disposal activities or
implementation of the abatement plan to meet the baseline
pollution load when the baseline pollution load is exceeded
according to the following schedule:
(A) prior to final bond release, if the operator is in
compliance with the pollution abatement plan, where the
department demonstrates that the operator has caused the
baseline pollution load to be exceeded; the department shall
have the burden of proving that the operator caused the baseline
pollution load to be exceeded;
(B) prior to final bond release, if the operator is not in
compliance with the pollution abatement plan, unless the
operator affirmatively demonstrates that the reason for
exceeding the baseline pollution load is a cause other than the
operator's coal refuse disposal and abatement activities; and
(C) subsequent to final bond release where the department
demonstrates that the operator has caused the baseline pollution
load to be exceeded; the department shall have the burden of
proving that the operator caused the baseline pollution load
to be exceeded.
(2) an allegation that the operator caused the baseline
pollution load to be exceeded under subclause (ii) of clause
(1) shall not prohibit the department from issuing, renewing
or amending the operator's license and permits or approving a
bond release until a final administrative determination has
been made of an such alleged violation.
(3) For purposes of this subsection, the term "encountered"
shall not be construed to mean diversions of surface water and
shallow groundwater flow from areas undisturbed by the
implementation of the abatement plan which would otherwise drain
into the affected area, provided such diversions are designed,
operated and maintained in accordance with all applicable
regulations of the department.
(h) An operator required to treat preexisting discharges
under subsection (g) will be allowed to discontinue treating
preexisting discharges when the operator demonstrates that:
(1) the baseline pollution load is no longer being exceeded
as shown by all ground and surface water monitoring;
(2) all requirements of the permit and the special
authorization have been or are being met;
(3) the operator has implemented each step of the abatement
plan as approved in the authorization; and
(4) the operator did not cause or allow any additional
surface water pollution or groundwater degradation by
reaffecting the pollution abatement area.
(i) If any condition set forth in subsection (g) of this
section occurs after discontinuance of treatment under
subsection (h) of this section, the operator shall reinstitute
treatment in accordance with subsection (g) of this section.
An operator who reinstitutes treatment under this subsection
shall be allowed to discontinue treatment if the requirements
of subsection (h) of this section are met.
(j) For pollution abatement areas subject to a grant of
special authorization under this section, the operator shall
comply with all requirements relating to bonds set forth in
section 6 of this act, except that the criteria and schedule
for release of bonds shall be as follows:
(1) Up to fifty per cent of the amount of bond if the
operator demonstrates that:
(i) all activities were conducted in accordance with all
applicable requirements;
(ii) the operator has satisfactorily completed installing
the water impermeable cover, grading, planting and drainage
control in accordance with the approved reclamation plan;
(iii) the operator has properly implemented each step of
the approved abatement plan;
(iv) the operator has not caused the baseline pollution
load to be exceeded for a period of a minimum of six months
prior to the submittal of a request for bond release and until
the bond release is approved as shown by all ground and surface
water monitoring; and
(v) the operator has not caused or contributed to any ground
or surface water pollution by reaffecting the pollution
abatement area.
(2) Up to an additional thirty-five per cent of the amount
of bond if the operator demonstrates that:
(i) the operator has replaced topsoil, completed final
grading and achieved successful vegetation in accordance with
the approved reclamation plan;
(ii) the operator has not caused or contributed to any
ground or surface water pollution by reaffecting the pollution
abatement area; and
(iii) the operator has achieved the actual improvement of
the baseline pollution load described in the abatement plan and
shown by all ground and surface water monitoring for the period
of time provided in the abatement plan or has achieved all of
the following:
(A) At a minimum, the operator has not caused the baseline
pollution load to be exceeded as shown by all ground and surface
water monitoring for a period of twelve months from the date
of initial bond release under clause (1) or from the date of
discontinuance of treatment under subsection (h) of this
section.
(B) The operator has conducted all measures provided in the
abatement plan and any additional measures specified by the
department in writing at the time of initial bond release under
clause (1).
(C) The operator has caused aesthetic or other environmental
improvements and the elimination of public health and safety
problems by engaging in coal refuse disposal activities and
reaffecting the pollution abatement area.
(D) The operator has stabilized the pollution abatement
area.
(3) The remaining amount of bond if the operator
demonstrates that:
(i) the operator has not caused the baseline pollution load
to be exceeded from the time of bond release under clause (2)
or, if treatment has been initiated any time after release of
the bond, for a period of five years from the date of
discontinuance of treatment under subsection (h) of this
section; and
(ii) the applicable liability period of section 6 of this
act has expired and the operator has successfully completed all
coal refuse disposal and reclamation activities.
(k) For reclamation plans approved as part of a grant of
special authorization under this section, the standard of
successful revegetation shall be, as a minimum, the
establishment of ground cover of living plants not less than
can be supported by the best available topsoil or other suitable
material in the reaffected area, shall not be less than ground
cover existing before disturbance and shall be adequate to
control erosion: Provided, however, That the department may
require that the standard of success comply with section 5(c)
and (e) of this act where it determines compliance is integral
to the proposed pollution abatement plan.
(1) In establishing an appropriate bond amount for coal
refuse disposal in any area subject to a grant of special
authorization under this section, the department shall apply
as a credit to the bond amount any funds paid into the Surface
Mining Conservation and Reclamation Fund as a result of a prior
forfeiture on the area. The area shall also be exempt from
permit reclamation fees prescribed by regulations promulgated
under this act.
(m) An operator granted special authorization under this
section shall be permanently relieved from the requirements of
subsection (g) of this section and the act of June 22, 1937
(P.L.1987, No.394), known as "The Clean Streams Law," for all
preexisting discharges, identified in subsection (e) of this
section, to the extent of the baseline pollution load if the
operator complies with the terms and conditions of the pollution
abatement plan and the baseline pollution load has not been
exceeded at the time of final bond release. Relief of liability
under this subsection shall not act or be construed to relieve
any person other than the operator granted special authorization
from liability for the preexisting discharge; nor shall it be
construed to relieve the operator granted special authorization
from liability under subsection (g)(1)(ii) of this section if
the baseline pollution load is exceeded.
(6.2 added Dec. 7, 1994, P.L.808, No.114)
Section 6.3. Experimental Practices.--In order to encourage
advances in coal refuse disposal practices and advances in
technology or practices which will enhance environmental
protection with respect to coal refuse disposal activities, the
department may grant permits approving experimental practices
and demonstration projects. The department may grant such
permits if:
(1) the environmental protection provided will be
potentially more protective or at least as protective as
required by this act and department regulations;
(2) the coal refuse disposal activities approved under the
permits are not larger or more numerous than necessary to
determine the effectiveness and economic feasibility of the
experimental practices or demonstration projects; and
(3) the experimental practices or demonstration projects
do not reduce the protection afforded public health and safety
below that provided by this act and department regulations.
(6.3 added Dec. 7, 1994, P.L.808, No.114)
Section 6.4. Coal Bed Methane Review Board.--(a) There is
established the Coal Bed Methane Review Board.
(b) The following shall apply:
(1) The board shall consist of the following members:
(i) One member appointed by the Governor from a list of
three individuals submitted by the Pennsylvania Farm Bureau.
(ii) One member appointed by the Governor from a list of
three individuals prepared jointly by the Pennsylvania Oil and
Gas Association, the Independent Oil and Gas Association of
Pennsylvania and the Pennsylvania Coal Association.
(iii) One member appointed by the Governor who is an
individual with expertise in petroleum geology or petroleum
engineering with at least three years of experience in practice
in Pennsylvania who is appointed from a list of three
individuals prepared jointly by the deans of the College of
Agricultural Sciences and the College of Earth and Mineral
Sciences of The Pennsylvania State University.
(2) The lists required by clause (1) shall be submitted to
the Governor within thirty days of the effective date of this
section, and the Governor's appointments shall be made within
ninety days of the effective date of this section.
(3) Upon occurrence of a vacancy, the appropriate entity
shall submit a new list within thirty days of the vacancy, and
the Governor shall make an appointment within thirty days of
receipt of the list.
(c) The term of appointment of a board member shall be three
years or until a successor is duly appointed. A board member
may be appointed for successive terms.
(d) The Department of Environmental Protection shall provide
administrative and clerical support to the board as requested.
(e) The purpose of the board shall be to consider objections
and attempt to reach agreement on or determine a location for
the coal bed methane well or access road.
(f) Members of the board shall be compensated at the
appropriate per diem rate based on the prevailing formula
administered by the Commonwealth, but not less than one hundred
fifty dollars ($150) per day, plus all reasonable expenses
incurred while performing their official duties. Compensation
shall be adjusted annually by the Secretary of Environmental
Protection to account for inflation based on the rate of
inflation identified by the Consumer Price Index published by
the United States Department of Labor. The individual member
may waive his right to all or part of the compensation set forth
in this subsection.
(6.4 added Feb. 1, 2010, P.L.126, No.4)
Compiler's Note: Section 5 of Act 4 of 2010, which added
section 6.4, provided that the Department of
Environmental Protection shall publish a notice in the
Pennsylvania Bulletin when all initial members of the
board established in section 6.4 have been appointed.
Section 6.5. Procedures.--(a) A well operator who intends
to drill a coal bed methane well or construct an access road
associated with a coal bed methane well shall provide written
notification to the surface owner in the manner prescribed in
section 201(b) of the act of December 19, 1984 (P.L.1140,
No.223) , known as the "Oil and Gas Act." The notification shall
also include the following statement on a form provided by the
Department of Environmental Protection in at least twelve-point
print:
Right to Participate in
Alternative Dispute Resolution
You have the right to have your objections to the well
operator's proposed location of the well or of the access
road associated with the well heard and decided by the
three-member Coal Bed Methane Review Board, created under
the act of
, (P.L. , No. ), known as the "Coal
Bed Methane Well Dispute Resolution Act." You may participate
with or without a lawyer in any conference session the board
may hold to hear your objections.
Important: To exercise this right, you must file your
objections in writing with the Coal Bed Methane Review Board
through the Department of Environmental Protection at:
(Address)
(City, State, Zip)
within fifteen days of the date you received this
notification. Otherwise, you will be considered to have
waived this right to resolve your objections through the
Coal Bed Methane Review Board. Your objection may be filed
in person or by certified mail.
(b) A surface owner who intends to invoke alternative
dispute resolution shall file written objections to the well
operator's proposed location for the coal bed methane well or
access road with the board within fifteen days of the date of
receipt of the written notification and plat described in
subsection (a). The written objections may indicate an
alternative location at which the proposed coal bed methane
well could be drilled or the access road could be located to
overcome the objections. If no objections are filed in the time
prescribed in this subsection, the Department of Environmental
Protection shall accept an application from the operator and
proceed to issue or deny that the well permit, provided that
the department shall not accept a well permit application unless
the applicant demonstrates that the notification requirements
of subsection (a) have been satisfied.
(c) If objections are filed by a surface owner pursuant to
subsection (b), an employee of the Department of Environmental
Protection responsible for receiving such objections on behalf
of the board shall, within two days, notify the operator and
the board of the objections, and the board shall fix a time and
place for holding the dispute resolution conference and shall
notify the surface owner and well operator of the time and place
where the conference will be held. The conference shall be
scheduled to commence not more than ten business days from the
date of service of the objections on the well operator,
provided, however, that, if the board cannot be fully convened
for a conference within this time, the conference shall be
scheduled to commence on the earliest reasonable date in which
the board can be fully convened, but no later than fifteen
business days from the date of the service of the objections
on the well operator. For purposes of this section, the term "
fully convened " shall mean the participation of all three
members of the board. The conference shall be held at the
applicable regional or district office of the Department of
Environmental Protection closest to the tract which is the
subject of the objection. The board may use, and the Department
of Environmental Protection shall provide, clerical assistance
and the use of regional or district offices for the board in
conducting conference sessions.
(d) At the conference the well operator and surface owner
or owners as are present or represented shall consider the
objections and attempt to agree upon a location for the coal
bed methane well or access road. The board may hold more than
one conference session. The conference shall be completed within
ten business days of the date that the conference is originally
commenced. However, the board, in its sole discretion, may
extend the time for completion of the conference by an
additional five business days, and the parties to the conference
may extend the time for completion of the conference to a date
mutually agreed upon. Any agreement reached at the conference
shall be consistent with the requirements of the "Oil and Gas
Act" and shall be reduced to writing by the board and submitted
to the Department of Environmental Protection within ten
business days of the date that the conference is completed.
Upon receipt of notice that the board's conference resulted in
a mutual agreement between the operator and the surface owner,
the Department of Environmental Protection shall accept an
application with a plat showing the agreed-upon location of the
coal bed methane well and access road from the operator and
shall proceed to issue or deny the well permit. If the parties
to the conference before the board fail to agree upon a location
of the coal bed methane well or access road or if only the party
requesting review participates in the conference, the board
shall make a determination in writing establishing a location
of the coal bed methane well or access road that, in the
judgment of the majority of the board, will cause only those
surface impairments that are reasonably necessary for purposes
of extracting the underlying coal bed methane. Issuance of the
written determination shall be made within ten business days
of the date of completion of the conference and shall be served
on the date of issuance by certified mail upon the surface
owner, the well operator and the Department of Environmental
Protection. Within fifteen business days of the date of
completion of the conference, the board shall issue a written
statement setting forth findings of fact and reasons in support
of its determination and shall serve copies of the written
statement by certified mail upon the surface owner, the well
operator and the Department of Environmental Protection. Failure
by the board to issue the written statement of findings of fact
and reasons in support of its determination within the
prescribed period of fifteen business days shall not preclude
an aggrieved person from exercising the right of appeal to a
court of common pleas as provided under subsection (f). If no
appeal of the board's determination is filed under subsection
(f), the Department of Environmental Protection shall accept
an application with a plat showing the location of the coal bed
methane well and access road as determined by the board from
the operator and shall proceed to issue or deny the well permit.
(e) Any determination by the board , made under subsection
(d), shall be binding on the Department of Environmental
Protection. The board's determination shall not limit or
otherwise affect the Department of Environmental Protection's
regulatory authority under the "Oil and Gas Act," the act of
June 22, 1937 (P.L.1987, No.394) , known as "The Clean Streams
Law," or any other applicable law administered by the
department.
(f) Any person aggrieved by a determination of the board
issued under subsection (d) shall have the right, within fifteen
days of receipt of the written or final determination, to appeal
the determination to the court of common pleas in the judicial
district in which the affected property is located. A copy of
the appeal shall be served upon all the parties to the
conference. The board or the Department of Environmental
Protection shall not be a party to the appeal. The court shall
hold a hearing on the appeal within thirty days of filing of
the appeal and shall render its decision in the appeal within
sixty days of filing of the appeal. In any appeal, the only
issue to be determined by the court is whether the location of
the disputed coal bed methane well or access road, as the case
may be, determined by the board, will cause only those surface
impairments that are reasonably necessary for purposes of
extracting the underlying coal bed methane. If the court agrees
that the board's determination meets this standard, it shall
affirm the board's determination. If the court determines that
the board's determination does not meet this standard, it shall
issue an order indicating the location of the disputed coal bed
methane well or access road, as the case may be, that, in the
opinion of the court, will cause only those surface impairments
that are reasonably necessary for purposes of extracting the
underlying coal bed methane. Upon issuance of an order by the
court, the Department of Environmental Protection shall accept
an application from the operator and shall proceed to issue or
deny the well permit.
(g) This section supersedes the ordinances and resolutions
of political subdivisions dealing with material regulated by
this section.
(h) The provisions of this section shall not be construed
to affect, limit or impair any enforcement action taken by the
Department of Environmental Protection under the act of
December 19, 1984 (P.L.1140, No.223) , known as the "Oil and
Gas Act."
(i) Nothing in this section precludes a person from seeking
other remedies allowed by statute, common law, deed or contract,
nor does this section diminish or alter rights previously
established or granted by statute, common law, deed or contract.
(6.5 added Feb. 1, 2010, P.L.126, No.4)
Compiler's Note: The Coal Bed Methane Well Dispute
Resolution Act, referred to in subsection (a), does not
exist.
Section 7. Unlawful Conduct.--It shall be unlawful to
establish, operate or maintain a coal refuse disposal area in
a manner which fails to comply or for any person to fail to
comply with any rule or regulation of the department or fail
to comply with any order or permit of the department, to violate
any of the provisions of this act or rules and regulations
adopted hereunder, orders or permits of the department, to cause
air or water pollution in connection with coal refuse disposal
operations and not otherwise proscribed by this act, or to
hinder, obstruct, prevent or interfere with the department or
its personnel in the performance of any duty hereunder,
including violations of 18 Pa.C.S. § 4903 (relating to false
swearing) and 18 Pa.C.S. § 4904 (relating to unsworn
falsification to authorities). Any person or municipality
engaging in such conduct shall be subject to the provisions of
this section and sections 8, 9, 10, 11 and 12 of this act.
(7 amended Oct. 10, 1980, P.L.807, No.154)
Section 8. Cessation Orders.--The department shall have the
authority to order the immediate cessation of any operation
that is started without the operator thereof having first
obtained a permit as required by this act, or where the public
welfare or safety calls for the immediate halt of the operation
until corrective steps have been undertaken by the operator to
the satisfaction of the department.
(8 amended Oct. 10, 1980, P.L.807, No.154)
Section 9. Enforcement Orders.--The department may issue
such orders as are necessary to aid in the enforcement of the
provisions of this act. Such orders shall include, but not be
limited to, orders requiring persons to cease operations and
orders modifying, suspending or revoking permits. The right of
the department to issue an order under this act is in addition
to any penalty which may be imposed pursuant to this act.
(9 amended Oct. 10, 1980, P.L.807, No.154)
Section 10. Injunctive Relief; Remedies not
Exclusive.--(a) In addition to any other remedies provided for
in this act, the department may petition the Commonwealth Court
or the court of common pleas in the county in which the
defendant resides or has his place of business for an injunction
to restrain all violations and to that end jurisdiction is
hereby conferred in law and equity upon such courts.
(b) The penalties and remedies prescribed by this act shall
be deemed concurrent and the existence of or exercise of any
remedy shall not prevent the department from exercising any
other remedy hereunder, at law or in equity.
(10 amended Oct. 10, 1980, P.L.807, No.154)
Section 11. Civil Penalties.--In addition to proceeding
under any other remedy available at law or in equity for a
violation of a provision of this act, rule, regulation, order
of the department, or a condition of any permit issued pursuant
to this act, the department may assess a civil penalty upon a
person or municipality for such violation. Such a penalty may
be assessed whether or not the violation was willful. The civil
penalty so assessed shall not exceed five thousand dollars
($5,000) per day for each violation. In determining the amount
of the civil penalty the department shall consider the
willfulness of the violation, damage or injury to the waters
of the Commonwealth or their uses, cost of restoration and other
relevant factors. If the violation leads to the issuance of a
cessation order, a civil penalty shall be assessed. If the
violation involves the failure to correct, within the period
prescribed for its correction, a violation for which a cessation
order, other abatement order or notice of violation has been
issued, a civil penalty of not less than seven hundred fifty
dollars ($750) shall be assessed for each day the violation
continues beyond the period prescribed for its correction:
Provided, however, That correction of a violation within the
period prescribed for its correction shall not extinguish
liability for the violation. Upon the issuance of a notice or
order charging that a violation of the act has occurred, the
secretary shall inform the person within a period of time to
be prescribed by rule and regulation of the proposed amount of
said penalty. The person charged with the penalty shall then
have thirty days to pay the proposed penalty in full or, if the
person wishes to contest either the amount of the penalty or
the fact of the violation, forward the proposed amount to the
secretary for placement in an escrow account with the State
Treasurer or any Pennsylvania bank, or post an appeal bond in
the amount of the proposed penalty, such bond shall be executed
by a surety licensed to do business in the Commonwealth and be
satisfactory to the department. If through administrative
hearing or judicial review of the proposed penalty, it is
determined that no violation occurred or that the amount of the
penalty shall be reduced, the secretary shall within thirty
days remit the appropriate amount to the person, with any
interest accumulated by the escrow deposit. Failure to forward
the money or the appeal bond to the secretary within thirty
days shall result in a waiver of all legal rights to contest
the fact of the violation or the amount of the penalty. The
amount assessed after administrative hearing or waiver of
administrative hearing shall be payable to the Commonwealth of
Pennsylvania and shall be collectible in any manner provided
by law for the collection of debts. If any person liable to pay
such penalty neglects or refuses to pay the same after demand,
the amount, together with interest and any costs that may
accrue, shall constitute a judgment in favor of the Commonwealth
upon the property of such person from the date it has been
entered and docketed of record by the prothonotary of the county
where such is situated. The department may, at any time,
transmit to the prothonotaries of the respective counties
certified copies of all such judgments, and it shall be the
duty of each prothonotary to enter and docket the same of record
in his office, and to index it as judgments are indexed, without
requiring the payment of costs as a condition precedent to the
entry thereof. Any other provision of law to the contrary
notwithstanding, there shall be a statute of limitations of
five years upon actions brought by the Commonwealth pursuant
to this subsection.
(11 amended Oct. 10, 1980, P.L.807, No.154)
Section 12. Penalties.--(a) Any person who violates any
provision of this act, any rule or regulation of the department,
any order of the department, or any condition of any permit
issued pursuant to this act is guilty of a summary offense and,
upon conviction, such person shall be subject to a fine of not
less than one hundred dollars ($100) nor more than ten thousand
dollars ($10,000) for each separate offense, and, in default
of the payment of such fine, a person shall be imprisoned for
a period of ninety days.
(b) Any person who willfully or negligently violates any
provision of this act, any rule or regulation of the department,
any order of the department, or any condition of any permit
issued pursuant to the act is guilty of a misdemeanor of the
third degree and, upon conviction, shall be subject to a fine
of not less than two thousand five hundred dollars ($2,500) nor
more than twenty-five thousand dollars ($25,000) for each
separate offense or to imprisonment in the county jail for a
period of not more than one year, or both.
(c) Any person who, after a conviction of a misdemeanor for
any violation within two years as above provided, willfully or
negligently violates any provision of this act, any rule or
regulation of the department, any order of the department, or
any condition of any permit issued pursuant to this act is
guilty of a misdemeanor of the second degree and, upon
conviction, shall be subject to a fine of not less than two
thousand five hundred dollars ($2,500) nor more than fifty
thousand dollars ($50,000) for each separate offense or to
imprisonment for a period of not more than two years, or both.
(d) Each day of continued violation of any provision of
this act, any rule or regulation of the department, any order
of the department or any condition of any permit issued pursuant
to this act shall constitute a separate offense.
(e) All summary proceedings under the provisions of this
act may be brought before any district justice of the county
where the offense occurred or any unlawful discharge of
industrial waste or pollution was maintained, or in the county
where the public is affected, and to that end jurisdiction is
hereby conferred upon said district justices, subject to appeal
by either party in the manner provided by law for appeals from
summary convictions. It shall be the duty of the district
attorney of the county to represent the interests of the
Commonwealth in such actions.
(12 amended Oct. 10, 1980, P.L.807, No.154)
Compiler's Note: Section 28 of Act 207 of 2004 provided
that any and all references in any other law to a
"district justice" or "justice of the peace" shall be
deemed to be references to a magisterial district judge.
Section 13. Citizens' Suits.--(a) Except as provided in
subsection (c) of this section, any person having an interest
which is or may be adversely affected may commence a civil
action on his own behalf to compel compliance with this act or
any rule, regulation, order or permit issued pursuant to this
act against the department where there is alleged a failure of
the department to perform any act which is not discretionary
with the department or against any person who is alleged to be
in violation of any provision of this act or any rule,
regulation, order or permit issued pursuant to this act. Any
other provision of law to the contrary notwithstanding, the
courts of common pleas shall have jurisdiction of such actions,
and venue in such actions shall be as set forth in the Rules
of Civil Procedure concerning actions in assumpsit.
(b) Whenever any person presents information to the
department which gives the department reason to believe that
any person is in violation of any requirement of this act or
any condition of any permit issued hereunder or of the acts
enumerated in section (5)(g) of this act or any condition or
any permit issued thereunder, the department shall immediately
order inspection of the operation at which the alleged violation
is occurring, and the department shall notify the person
presenting such information and such person shall be allowed
to accompany the inspector during the inspection.
(c) No action pursuant to this section may be commenced
prior to sixty days after the plaintiff has given notice in
writing of the violation to the department and to any alleged
violator, nor may such action be commenced if the department
has commenced and is diligently prosecuting a civil action in
a court of the United States or a state to require compliance
with this act or any rule, regulation, order or permit issued
pursuant to this act, but in any such action in a court of the
United States or of the Commonwealth any person may intervene
as a matter of right.
(d) The provisions of subsection (c) of this section to the
contrary notwithstanding, any action pursuant to this section
may be initiated immediately upon written notification to the
department in the case where the violation or order complained
of constitutes an imminent threat to the health or safety of
the plaintiff or would immediately affect a legal interest of
the plaintiff.
(e) The court, in issuing any final order in any action
brought pursuant to this section, may award costs of litigation
(including attorney and expert witness fees) to any party,
whenever the court determines such award is appropriate. The
court may, if a temporary restraining order or preliminary
injunction is sought, require the filing of a bond or equivalent
security in accord with the Rules of Civil Procedure.
(13 added Oct. 10, 1980, P.L.807, No.154)
Section 14. Coal Refuse Disposal Control Fund.--All fines,
civil penalties, bond forfeitures and fees collected under this
act shall be paid into the Treasury of the Commonwealth in a
special fund known as the "Coal Refuse Disposal Control Fund,"
hereby established, which shall be administered by the
department for use in the elimination of pollution, the
abatement of health and safety hazards and nuisances and such
other purposes as are necessary to implement the provisions of
this act pursuant to the rules and regulations adopted by the
Environmental Quality Board. Moneys deposited into the Coal
Refuse Disposal Control Fund are hereby appropriated to the
Department of Environmental Resources to carry out the purposes
provided in this act.
(14 added Oct. 10, 1980, P.L.807, No.154)
Compiler's Note: Section 502(c) of Act 18 of 1995, which
created the Department of Conservation and Natural
Resources and renamed the Department of Environmental
Resources as the Department of Environmental Protection,
provided that the Environmental Quality Board shall have
the powers and duties currently vested in it, except as
vested in the Department of Conservation and Natural
Resources by Act 18 of 1995, which powers and duties
include those set forth in section 14.
Section 15. Savings Clause.--(a) Nothing in this act shall
be construed as estopping the Commonwealth, or any district
attorney from proceeding in the courts of law or equity to abate
pollutions forbidden under this act, or abate nuisances under
existing law. It is hereby declared to be the purpose of this
act to provide additional and cumulative remedies to control
the disposal of coal refuse in this Commonwealth and nothing
contained in this act shall in any way abridge or alter rights
of action or remedies now or hereafter existing in equity, or
under the common law or statutory law, criminal or civil, nor
shall any provision of this act be construed as estopping the
Commonwealth, persons or municipalities, in the exercise of
their rights under the common law or decisional law or in
equity, from proceeding in courts of law or equity to suppress
nuisances, or to abate any pollution now or hereafter existing,
or enforce common law or statutory rights. No courts of this
Commonwealth having jurisdiction to abate public or private
nuisances shall be deprived of such jurisdiction to abate any
private or public nuisance instituted by any person for the
reason that such nuisance constitutes air or water pollution.
(b) In order to maintain primary jurisdiction over coal
mining in Pennsylvania, it is hereby declared that for a period
of two years from the effective date of this act the department
shall not enforce any provision of this act which was enacted
by these amendments solely to secure for Pennsylvania primary
jurisdiction to enforce Public Law 95-87, the Federal Surface
Mining Control and Reclamation Act of 1977, if the corresponding
provision of that act is declared unconstitutional or otherwise
invalid due to a final judgment by a Federal court of competent
jurisdiction and not under appeal or is otherwise repealed or
invalidated by final action of the Congress of the United
States. If any such provision of Public Law 95-87 is declared
unconstitutional or invalid, the corresponding provision of
this act enacted by these amendments solely to secure for
Pennsylvania primary jurisdiction to enforce the Federal Surface
Mining Control and Reclamation Act of 1977, Public Law 95-87
shall be invalid and the secretary shall enforce this act as
though the law in effect prior to these amendments remained in
full force and effect.
It is hereby determined that it is in the public interest
for Pennsylvania to secure primary jurisdiction over the
enforcement and administration of Public Law 95-87, the Federal
Surface Mining Control and Reclamation Act of 1977, and that
the General Assembly should amend this act in order to obtain
approval of the Pennsylvania program by the United States
Department of the Interior. It is the intent of this act to
preserve existing Pennsylvania law to the maximum extent
possible.
(15 added Oct. 10, 1980, P.L.807, No.154)
Section 15.1. Suspension of Implementation of Certain
Provisions.--In order to maintain primary jurisdiction over
surface coal mining in Pennsylvania, the department shall
suspend implementation of any provision of this act found to
be inconsistent with Federal law by the Secretary of the United
States Department of the Interior under section 505 of the
Surface Mining Control and Reclamation Act of 1977 (Public Law
95-87, 30 U.S.C. § 1201 et seq.) or the Administrator of the
Environmental Protection Agency under section 402 of the Federal
Water Pollution Control Act (62 Stat. 1155, 33 U.S.C. § 1251
et seq.). To maintain primary jurisdiction over coal mining
operations the department shall develop a regulatory program
and program amendments under the Surface Mining Control and
Reclamation Act and the Federal Water Pollution Control Act
that are consistent with the requirements of section 301(p) of
the Federal Water Pollution Control Act and the State remining
regulations for surface mining activities.
(15.1 added Dec. 7, 1994, P.L.808, No.114)
Section 16. Severability Clause.--The provisions of this
act are severable and if any provision or part thereof shall
be held invalid or unconstitutional or inapplicable to any
person or circumstances, such invalidity, unconstitutionality
or inapplicability shall not affect or impair the remaining
provisions of the act.
(16 added Oct. 10, 1980, P.L.807, No.154)
APPENDIX
------Supplementary Provisions of Amendatory Statutes
------1980, OCTOBER 10, P.L.807, NO.154
Section 7. To the full extent provided by section 529 of
the Surface Mining Control and Reclamation Act of 1977 (Public
Law 95-87), the surface mining of anthracite shall continue to
be governed by the Pennsylvania law in effect on August 3, 1977.
Compiler's Note: Act 154 amended the title and added or
amended sections 1, 3, 3.1, 3.2, 3.3, 4, 5, 6, 6.1, 7,
8, 9, 10, 11, 12, 13, 14, 15 and 16 of Act 318.
Section 8. In order to maintain primary jurisdiction over
surface coal mining in Pennsylvania pursuant to the Surface
Mining Control and Reclamation Act of 1977, Public Law 95-87,
the Environmental Quality Board shall have the authority to
adopt initial regulations on an emergency basis in accordance
with section 204(3) (relating to omission of notice of proposed
rule making) of the act of July 31, 1968 (P.L.769, No.240),
referred to as the Commonwealth Documents Law. Provided,
however, within 30 days after the Secretary of the United States
Department of Interior grants such primary jurisdiction to
Pennsylvania, the Environmental Quality Board shall repropose
the regulations adopted on an emergency basis, shall submit the
regulations to the Senate Environmental Resources and House
Mines and Energy Management Committees of the General Assembly
for their review and comments, and shall schedule public
hearings within 90 days after such grant of primary jurisdiction
for the purpose of hearing public comment on any appropriate
revisions.
At least 30 days prior to consideration by the Environmental
Quality Board of any revised regulations or any new regulations
under this act other than those initial regulations promulgated
on an emergency basis, the department shall submit such
regulation to the Senate Environmental Resources and House Mines
and Energy Management Committees of the General Assembly for
their review and comment.